Plaintiff was sent to pre-trial detention facility operated by defendant province. Plaintiff was known to be low-level member of particular street gang. Plaintiff was assigned to particular unit pursuant to policy requiring gang members to be distributed as evenly as possible throughout facility. Plaintiff learned R, who was high-level member, if not leader, of rival street gang, was being housed in same unit. During prior period of incarceration, plaintiff had requested protective custody, presumably for gang-related concerns. Plaintiff did not request protective custody or alternative placement on current occasion. Plaintiff was attacked from behind by one person, dragged to another area, subjected to vicious beating by several people, and left unconscious. Plaintiff suffered severe injuries and was left hemiplegic with acute aphasia. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded 85 per cent of agreed-upon damages after reduction by 15 per cent for contributory negligence. Parties agreed Crown owed duty of care to inmates while in its custody. Policy with respect to housing inmates with particular security risks fell squarely within category of policy decisions and was not justifiable. Policy was not unreasonable insofar as it was made bona fide and was not so irrational or patently unreasonable as to constitute improper exercise of governmental discretion. Nonetheless, failure to take circumstances into account while fulfilling policy’s distribution requirement amounted to negligent conduct. Inmate compatibility on basis of what was known or ought to have been known should have formed part of calculus. Plaintiff’s failure to request protective custody or alternative placement did not completely absolve defendant from liability. Defendant ought to have known R posed risk to rival gang members. R had been charged with murder and attempted murder in gang context, and he had engaged in extensive misconduct while in custody. Further, special security measures had been implemented for some of R’s court appearances. R likely had role in attack. Layout of facility itself allowed for prolonged attack to go undetected. Injuries sustained by plaintiff were direct result of defendant’s negligence.
Walters (Litigation guardian of) v. Ontario (Aug. 4, 2015, Ont. S.C.J., Gans J., File No. CV-09-378388) 257 A.C.W.S. (3d) 588.